from the start-of-stopping-trolls dept

One of the recurrent themes on Techdirt is that law itself should not become a tool for unlawful abuse. No matter how well-intentioned, if a law provides bad actors with the ability and opportunity to easily chill others' speech or otherwise lawful activity, then it is not a good law.

The CASE Act is an example of a bad law. On the surface it may seem like a good one: one of the reasons people are able to abuse the legal system to shut down those they want to silence is because getting sucked into a lawsuit, even one you might win, can be so ruinously expensive. The CASE Act is intended to provide a more economical way to resolve certain types of copyright infringement disputes, particularly those involving lower monetary value.

But one of the reasons litigation is expensive is because there are number of checks built into it to make sure that before anyone can be forced to pay damages, or be stopped from saying or doing what they were saying or doing, that the party making this demand is actually entitled to. A big problem with the CASE Act is that in exchange for the cost-savings it may offer, it gives up many of those critical checks.

In recognition of the harm removal of these checks would invite, EFF has authored a letter to the House Judiciary Committee raising the alarm on how the CASE Act would only aggravate, rather than remediate, the significant troll problem.

Per the letter, federal courts have been increasingly "reining in [trolling behavior] by demanding specific and reliable evidence of infringement—more than boilerplate allegations—before issuing subpoenas for the identity of an alleged infringer. Some federal courts have also undertaken reviews of copyright troll plaintiffs’ communications with their targets with an eye to preventing coercion and intimidation. These reforms have reduced the financial incentive for the abusive business model of copyright trolling."

But under the CASE Act, these provisions would not apply. Instead

[L]egally unsophisticated defendants—the kind most often targeted by copyright trolls—are likely to find themselves bound by the judgments of a non-judicial body in faraway Washington, D.C., with few if any avenues for appeal. The statutory damages of up to $30,000 proposed in the CASE Act, while less than the $150,000 maximum in federal court, are still a daunting amount for many people in the U.S., more than high enough to coerce Internet users into paying settlements of $2,000–$8,000. Under the Act, a plaintiff engaged in copyright trolling would not need to show any evidence of actual harm in order to recover statutory damages. And unlike in the federal courts, statutory damages could be awarded under the CASE Act even for copyrights that are not registered with the Copyright Office before the alleged infringement began. This means that copyright trolls will be able to threaten home Internet users with life-altering damages—and profit from those threats—based on works with no commercial or artistic value.

And that's not all:

Another troubling provision of the CASE Act would permit the Copyright Office to dispense with even the minimal procedural protections established in the bill for claims of $5,000 or less. These “smaller claims”—which are still at or above the largest allowed in small claims court in 21 states—could be decided by a single “Claims Officer” in a summary procedure on the slimmest of evidence, yet still produce judgments enforceable in federal court with no meaningful right of appeal.

Also:

[T] he federal courts are extremely cautious when granting default judgments, and regularly set them aside to avoid injustice to unsophisticated defendants. Nothing in the CASE Act requires the Copyright Office to show the same concern for the rights of defendants. At minimum, a requirement that small claims procedures cannot commence unless defendants affirmatively opt in to those procedures would give the Copyright Office an incentive to ensure that defendants’ procedural and substantive rights are upheld. A truly fair process will be attractive to both copyright holders and those accused of infringement.

The CASE Act appears to reflect an idealized view that the only people who sue other people for copyright infringement are those who have valid claims. But that is not the world we live in. Trolls abound, parasites eager to use the threat of litigation as a club to extract money from innocent victims. And the CASE Act, if passed, would give them a bigger weapon.

It also gives would-be censors additional tools to chill their critics through the use of a new subpoena power administered through the Copyright Office, without sufficient due process built into the system to ensure that these subpoenas are not being used as a means of unjustly stripping speakers of their right to anonymous speech.

The CASE Act also gives the Copyright Office the authority to issue subpoenas for information about Internet subscribers. The safeguards for Internet users’ privacy established in the federal courts will not apply. In fact, the bill doesn’t even require that a copyright holder state a plausible claim of copyright infringement before requesting a subpoena—a basic requirement in federal court.

EFF was joined on this letter by many other lawyers (including me) and experts who have worked to defend innocent people from unjust threats of litigation, in the hope that it can help pressure Congress not to give the green light to more of it.

from the preserve-and-protect dept

Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.

But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.

“Although the Current Exemption does not cover it, preservation of online video games is now critical,” MADE writes in its comment to the Copyright Office. “Online games have become ubiquitous and are only growing in popularity. For example, an estimated fifty-three percent of gamers play multiplayer games at least once a week, and spend, on average, six hours a week playing with others online.”

“Today, however, local multiplayer options are increasingly rare, and many games no longer support LAN connected multiplayer capability,” MADE counters, adding that nowadays even some single-player games require an online connection. “More troubling still to archivists, many video games rely on server connectivity to function in single-player mode and become unplayable when servers shut down.”

Due to that, MADE is asking the Copyright Office (and the Librarian of Congress) to allow libraries and museums exemptions to run their own servers to display these games as well. Frankly, it's difficult to conjure an argument against the request. If games are art, and they are, then they ought to be preserved. The Copyright Office has already agreed with this line of thinking for the category of games that don't require an online connection, so it's difficult to see how it could punt on the issue of online games.

And, yet, we have examples of fan-run servers of abandoned games, or versions of games, getting bullied by companies like Blizzard. These fan-servers are essentially filling the same role that groups like MADE would like to do: preserving old gaming content that has been made otherwise unavailable by companies that have turned down online game servers.

It's enough to make one wonder why a group of fans of a game shouldn't get the same protections afforded to a library or museum, if the end result is nearly identical.

from the about-freaking-time dept

For years we've written about the idiocy of the DMCA's 1201 triennial review. If you don't recall, Section 1201 of the DMCA is the "anti-circumvention" part of the law, saying that anything that gets around DRM is, itself, copyright infringement. This was so obviously stupid and counterproductive when it passed, and Congress knew it was so obviously stupid and counterproductive, that it included an even stupider "safety valve" to deal with the obviously bad results of the law. That safety valve, known as the "triennial review" is that every three years, people need to beg and plead with the Copyright Office and the Librarian of Congress to make explicit exemptions from the law, where circumventing DRM won't be considered infringing. Over the years, this lengthy and costly process has at least allowed certain key exemptions for security and academic research. Though, of course, even when exemptions are granted, it's often a hot mess.

But, astoundingly, the exemptions only last until the following triennial review, meaning that every few years, everyone has to waste their time and go through the whole damn process again. This blew up in everyone's face in 2012 when the Librarian of Congress rejected an exemption for phone unlocking that had been in place for the previous round. Lots of people got angry, and even the White House weighed in to say it was a mistake that should be fixed. Of course, rather than fixing Section 1201, they just passed a separate law specific to phone unblocking.

However, the whole issue got so much attention and so much interest (both from the public and politicians) that I'd be surprised if the Copyright Office ever decided to drop an exemption after it had been issued. And, indeed in the newly released notice of proposed rulemaking (NPRM) on the latest exemptions, the Copyright Office easily renews all of the old exemptions:

As detailed below, after reviewing the petitions for renewal and comments in
response, the Office concludes that it has received a sufficient petition to renew each
existing exemption and it does not find any meaningful opposition to renewal. Accordingly, the Register intends to recommend readoption of all existing exemptions in
their current form.

That's great, though it's crazy that this process even needs to happen each year, wasting everyone's time, energy and money.

Unfortunately, the Copyright Office had a chance to go further, but declined. In the Notice of Inquiry about this, the Copyright Office asked for input on regulatory language that could ease the situation for renewing existing exemptions, but in a footnote, the Copyright Office declines to make any suggestions:

Although the Office’s Notice of Inquiry stated that this NPRM would set forth proposed
regulatory language for any existing exemptions the Office intends to recommend for readoption,
because many of the new petitions seek to expand existing exemptions, the Office concludes that
proposing regulatory language at this time would be premature; the Register may propose altering
current regulatory language to expand the scope of an existing exemption, where the record
suggests such a change is appropriate.

Of course, all of this still leaves open the much wider question of why do we need Section 1201 in the first place? If someone infringes on someone's copyright, go after them for that. The whole focus on circumventing DRM is a distraction that has created numerous problems for lots and lots of people -- especially security and academic researchers. 1201 was never useful and it's time to just do away with it entirely.

from the oops dept

As we've discussed there's this stupid big fight going on these days, in which some in Congress -- mainly at the urging of the legacy entertainment industry -- are looking to move the Copyright Office out of its historical home in the Library of Congress. The first proposal to sort of (but not completely) do that, involved just making the head of the Copyright Office a Presidential appointment position, rather than (as now) appointed by the Librarian of Congress. The main reason that various members of Congress put forth in support of this change was that this would magically give the Copyright Office the freedom to modernize. Of course, there are few facts to support this argument. We broke the story about serious incompetence at the Copyright Office in managing its own modernization efforts, and there was also plenty of evidence that the current Librarian of Congress was successfully moving forward with a thorough modernization plan.

And, yet, the House Judiciary Committee still voted overwhelmingly to move the bill out of committee. Thankfully, it appears the bill is pretty much dead in the water for now, apparently in part because some people noticed that it's not really the Judiciary Committee's jurisdiction. Judiciary has power over issues related to copyright, but this isn't a bill about copyright, but about administration. That belongs elsewhere and apparently some folks are none too pleased that the Judiciary Committee went behind their backs on this effort.

And then there's this: last week in the Appropriations Committee's latest appropriations bill for the legislative branch, it pointed out that the Library was doing a good job in modernizing the Copyright Office. Here's the relevant section:

Copyright Modernization: The Committee is encouraged by the
collaborative work between the United States Copyright Office
(USCO) and the Library of Congress’s Office of the Chief Information
Officer’s Office (OCIO) and is looking forward to the USCO’s
revised provisional IT plan which is expected in early August. The
Committee continues to support a shared-services approach with
regards to commodity IT services. Copyright modernization is
something the Committee fully supports and will continue to provide
appropriate resources. As we go forward OCIO is encouraged
to engage with stakeholders both in the Congressional-community
and beyond to outline clear benchmarks for progress.

In other words, the very reason given by the Judiciary Committee for why we need a separate Copyright Office has been totally undermined by the Appropriations Committee, who actually took the time to figure out what was going on. Now, some of this might just be fighting over domains, but it raises even more questions about why some in Congress are so eager to yank the Copyright Office away from the Library of Congress at a time when the modernization program seems to be moving forward successfully.

from the um,-guys? dept

For all the talk of "fake news" going around these days, you'd think that the federal government would avoid creating more of its own on purpose. And you'd think that the MPAA and RIAA would know better than to join in on such a project. However, the following email was sent to some folks at Stanford Law School asking the law school to join in this fake news project promoting intellectual property via a fake Twitter feud:

Good Morning! My name is H------, and I am reaching out to you from the State Department’s Bureau of Economic Affairs. I gave you call a little earlier this morning, but I thought I would follow up with an email as well.

Currently, I am working on a social media project with the Office of Intellectual Property Enforcement. This summer, we want to activate an audience of young professionals- the kind of folks who are interested in foreign policy, but who aren’t aware that intellectual property protection touches every part of their lives. I think the law school students at your institution may be the type of community that we would like to engage. Additionally, we know that your law school is ranked among the top schools in Intellectual Property law, and thus our campaign may not only be fun, but relevant for you all as well.

So a little bit of a recap from the message that I left you this morning. The Bureau of Economic and Business Affairs wants to start a fake Twitter feud. For this feud, we would like to invite you and other similar academic institutions to participate and throw in your own ideas!

The week after the 4th of July, when everyone gets back from vacation but will still feel patriotic and summery, we want to tweet an audacious statement like, “Bet you couldn’t see the Independence Day fireworks without bifocals; first American diplomat Ben Franklin invented them #bestIPmoment @StateDept” Our public diplomacy office is still settling on a hashtag and a specific moment that will be unique to the State Department, but then we invite you to respond with your own #MostAmericanIP, or #BestIPMoment. Perhaps it will an alumni defending intellectual property in the courts or an article that your institution has produced regarding this topic.

Some characters from the IP community here in DC have agreed to participate with their own tweets: US Patent and Trademark Office, the Copyright Alliance, the Motion Picture Association of America, the Copyright Office, and the Recording Industry Association of America. We hope to diversify this crowd with academic institutions, sports affiliations, trade associations, and others!

Please give me a call or email me with any questions, comments, or concerns. I look forward to hearing from you soon!

Sincerely,
H--------
Official
UNCLASSIFIED

So, let's break this down. This is literally the State Department, working with the IP Enforcement Coordinator (normally called the "IP Czar") to team up with the MPAA, RIAA and Copyright Alliance (a front group for the RIAA and MPAA), along with the Patent & Trademark Office and the Copyright Office to create a fake Twitter feud over who likes copyright and patents more.

Everything about this is crazy. First, the State Dept. should not be creating fake news or fake Twitter feuds. Second, even if it were to do so, it seems to have picked one side of the debate, arguing that greater copyright and patent enforcement is obviously a good thing (how far we've come from the time when it was the State Department that fought back against SOPA and told the White House not to support it).

Separate from that, why are the MPAA, the RIAA and the Copyright Alliance agreeing to team up with the US government to create fake stories? That seems... really, really wrong. I get that they are obsessed with always pushing a misleading and one-sided message on copyright law, but creating out and out propaganda with the US government?

Also, even if the geniuses at IPEC -- an office that was set up in 2008 under another anti-piracy copyright law -- falsely believe it's their job to push Hollywood's message out to the world, how could they possibly have thought it was a bright idea to engage in outright propaganda using Twitter... and to try to enlist law school professors and students in these shenanigans?

I've put out a request for comment from the State Department's Bureau of Economic Affairs, and will update this post if I hear back.

from the but-that's-not-what-the-law-is-about dept

We already wrote about the new Copyright Office report on DMCA 1201 -- the section of the law that deals with the "anti-circumvention" provisions of the DMCA. That post focused on the realization by the Copyright Office that the current setup of 1201 does significant harm to security research, as researchers are often frightened to actually investigate certain technologies out of a fear that they may accidentally violate copyright law in getting around some sort of "technological protection measure."

But there's much more in the report as well, and I want to focus on one part, in particular, because it demonstrates a disturbing way in which the Copyright Office thinks about copyright law. But to understand why, we need some background. One of our big complaints about Section 1201 is that it says that circumventing a "technological protection measure" (TPM) is a violation of copyright law by itself. That's always troubled us, because it means you can violate copyright law even if you're not infringing on anyone's copyright. And that seems... wrong. And it's why 1201 has been cited in various lawsuits that clearly have nothing whatsoever to do with copyright: such as cases about printer ink cartridges and garage door openers. And the courts have struggled with this quite a bit. Thankfully, there have been some good rulings, noting that interpreting 1201 this way is bonkers, and a clear abuse of the law for issues that have nothing to do with copyright. But... not all courts.

The Copyright Office report actually has a nice rundown of some of the key caselaw history, so we'll let the report do it for us. The key issue, as the report notes, is whether or not 1201 requires a "nexus" to infringement. Specifically: should it be a 1201 violation if the underlying circumvention is done for a reason that is not even remotely connected to what copyright law actually protects?

Although the United States has consistently interpreted section 1201 as creating a cause
of action separate and independent from copyright infringement, courts construing the
statute to date have divided over its relationship to the traditional rights of copyright
owners. There currently is a circuit split as to whether a violation of the access‐control
provisions under section 1201(a) requires a “nexus” to infringement—i.e., that the
circumvention be done for the purpose of, or otherwise relate to, infringing an exclusive
right under section 106 of the Copyright Act. This issue has particular significance in the
context of copyrighted computer programs embedded in everyday consumer products.

In 2004, the Federal Circuit held in Chamberlain Group, Inc. v. Skylink Technologies, Inc.
that there must be a “reasonable relationship” between the access gained by the
circumvention and the protections conferred by section 106. Chamberlain’s garage
door openers contained copyrighted software controlling operation of the motor. The
software included a “rolling code,” which prevented the system from activating unless it
received a signal from an authorized transmitter. Chamberlain alleged that Skylink’s
manufacture and sale of “universal transmitters,” which circumvented the rolling code
and accessed the copyrighted software, violated the anti‐trafficking provisions of section
1201(a)(2). The court, however, rejected that claim, holding that section 1201 did not
create a new property right, but rather, “introduce[d] new grounds for liability in the
context of the unauthorized access of copyrighted material.” The court further stated
that “circumvention is not a new form of infringement but rather a new violation
prohibiting actions or products that facilitate infringement.” The court also expressed
policy concerns, including the view that without an infringement nexus requirement,
section 1201(a) would result in anticompetitive conduct unrelated to copyright
concerns. The court ultimately held that the Copyright Act granted consumers “the
right to use the copy of Chamberlain’s embedded software that they purchased” and,
therefore, in the absence of copyright infringement or facilitating copyright
infringement, the defendant could not be liable for a section 1201(a)(2) trafficking
violation.

In 2010, the Fifth Circuit in MGE UPS Systems, Inc. v. GE Consumer & Industrial, Inc.,
relied on Chamberlain to conclude that “[t]he DMCA prohibits only forms of access that
would violate or impinge on the protections that the Copyright Act otherwise affords
copyright owners.” The United States, however, urged rehearing on the ground that
that construction was “inconsistent with the text, structure, and legislative history of the
DMCA.” Such a reading, the United States argued, “threatens to frustrate Congress’s
purpose in section 1201(a)(1), which was to provide a federal prohibition against
bypassing passwords, encryption, and other technologies that regulate access to a
copyrighted work in circumstances in which the copyright owner would not otherwise
have a remedy under the Copyright Act.” The court subsequently withdrew its
opinion and substituted an opinion omitting the challenged portion of the original.

Later that year, the Ninth Circuit expressly declined to follow Chamberlain and instead
rejected a nexus requirement as “contrary to the plain language of the statute.” In
MDY Industries, LLC v. Blizzard Entertainment, Inc., the court held MDY liable under
section 1201(a)(2) for trafficking in technology in the form of a self‐playing bot, which
was designed to circumvent a technological control on a video game sold by Blizzard.
In rejecting the reasoning of Chamberlain, the Ninth Circuit looked to both the statutory
text and its legislative history. Among other textual considerations, the court noted that
section 1201(a) refers to technological measures protecting access to “a work protected
under this title,” while section 1201(b) refers to measures protecting “a right of a
copyright owner under this title.” The court read this distinction to indicate that
Congress intended section 1201(a) to “extend[] a new form of protection, i.e., the right to
prevent circumvention of access controls, broadly to . . . copyrighted works.” Section
1201(b), meanwhile, was intended “to reinforce copyright owners’ traditional exclusive
rights under § 106 by granting them an additional cause of action against those who
traffic in circumventing devices that facilitate infringement.”

So here's where the Copyright Office is supposed to step in and agree with the Chamberlain ruling and say that for 1201 to apply, it should require an underlying nexus to actual infringement under Section 106 of the Copyright Act, right? Right? RIGHT?!? I mean, that's the only sane response if you want to argue that anti-circumvention rules are truly about protecting copyright.

So, of course, that's not at all what the Copyright Office decided. Instead, it argues that there shouldn't be such a "nexus" requirement, because it might upset Hollywood to have less control. I mean, that's not the phrase it actually uses, but that's exactly what it's saying here:

The Copyright Office shares the concern that section 1201(a)’s protections for access
controls have the potential to implicate activities far outside the traditional scope of
copyright law. The Office does not, however, believe enacting an infringement nexus
requirement to be advisable, as it could severely weaken the right of copyright owners
to exercise meaningful control over the terms of access to their works online—a right
that both Congress and the Executive Branch have properly recognized as essential to
the development of the digital marketplace for creative content

If you don't live in the copyright world, this statement may not seem like a big deal, but it's actually a massive and hugely troubling admission. It's the Copyright Office saying that the point of anti-circumvention should be about giving copyright holders more control over digital marketplaces and not about preventing infringement. Of course, that's not what Hollywood has always claimed in the past. They always insist the reason they need anti-circumvention provisions all over the place is to stop infringement. But everyone has always assumed it's truly because they want more control and leverage over digital marketplaces. And here you have the Copyright Office admitting, right up front, that, sure, these provisions are about giving Hollywood extra control and not about stopping infringement.

The Copyright Office tries to justify this by arguing that (for example) bypassing the password protection on a Netflix or Spotify account might violate 1201, but wouldn't infringe on an underlying Section 106 right -- and thus 1201 without a nexus requirement is necessary to enable more Netflix or Spotify like markets:

In particular, Congress sought to facilitate the
development of online content delivery platforms in which the consumer pays for access
to copyrighted material rather than for possession of a copy. Section 1201(a) reflects
Congress’ understanding that such models will succeed only if copyright owners have
the legal right to prohibit persons from evading electronic paywalls or other technical
measures used to limit access to users who satisfy the rightsholder’s specified terms.

But... this is not a copyright concern. That's a business model concern. If things like password sharing become an issue, then it's up to companies to figure out a way to deal with it -- not make it a violation of copyright law.

If Congress truly wants to protect Hollywood from people sharing their Netflix passwords, there are other ways to do it without trying to loop it into copyright law -- and 1201 is a part of copyright law. It shouldn't then be abused for completely non-copyright purposes. Having an underlying nexus to copyright is the only sane way for the law to actually be related to the fundamental rights under copyright law. But here, the Copyright Office is arguing that Hollywood should get non-copyright rights of control over digital marketplaces, just because it thinks that's good for Hollywood. And it may be good for Hollywood, but the Copyright Office's job is supposed to be about copyright. Not about what's good for Hollywood.

from the what-a-world dept

Last week, the Copyright Office finally released a report that it had been working on for some time, looking specifically at Section 1201 of the DMCA. In case you're new around here, or have somehow missed all the times we've spoken about DMCA 1201 before, that's the "anti-circumvention" part of the DMCA. It's the part that says it's against copyright law to circumvent (or provide tools to circumvent) any kind of "technological protection measures," by which it means DRM. In short: getting around DRM or selling a tool that gets around DRM -- even if it's not for the purpose of infringing on any copyrights -- is seen as automatically infringing copyright law. This is dumb for a whole host of reasons, many of which we've explored in the past. Not only is the law dumb, it's so dumb that Congress knew that it would create a massive mess for tons of legitimate uses. So it built in an even dumber procedure to try to deal with the fact it passed a dumb law (have you noticed I have opinions on Section 1201?).

Specifically, every three years, people and companies can petition the Copyright Office/Librarian of Congress to "exempt" certain technologies or uses from 1201, saying that it is legal to circumvent the technological protection measures in that case, for the succeeding three years (yes, after three years, the original exemption expires, unless it is renewed). This triennial review process has historically been an (annoying) joke, where people basically have to beg the Copyright Office to let them, say, get around DVD DRM, in order to make documentaries. Or, famously, that time in 2012 when the Librarian of Congress refused to renew the phone unlocking exemption, magically making it illegal to unlock your phone for no clear reason at all. The whole thing is fairly described as a hot mess.

And, it really harms our own security the most.

That's because security researchers often need these exemptions the most, because they don't want to be accused of violating copyright law for doing their jobs in figuring out where there are weaknesses and vulnerabilities in various technologies. So, many of the applied for exemptions tend to come from the security community -- and sometimes they're granted, and other times they are not. A year ago, some security researchers (along with the EFF) sued the US government, arguing that 1201 violates the First Amendment, scaring off security researchers, and providing none of the usual defenses against infringement, such as fair use (which the Supreme Court has argued is a necessary First Amendment valve on copyright). That case is still waiting for a judge to rule on early motions (and it's waiting a long time).

Given all that as background, it's somewhat fascinating (and marginally surprising) to see that the Copyright Office officially agrees that the 1201 setup totally sucks for security researchers, and it would actually like Congress to fix that. The report specifically recommends expanding the existing "permanent exemption" for certain types of "security testing" to make it more applicable to a wider set of security practices:

... the Office recommends that Congress consider expanding the exemption for security testing under section 1201(j). This could
include expanding the definition of security testing, easing the requirement that
researchers obtain authorization, and abandoning or clarifying the exemption’s
multifactor test for eligibility.

There's another section in the law for "encryption research" and, again, the Copyright Office recognizes that should be expanded:

The exemption for encryption research under section 1201(g) may benefit from
similar revision, including removal of the requirement to seek authorization and
clarification or removal of the multifactor test.

For what it's worth, the report (obviously remembering how it got basically mocked and burned by everyone for removing the cell phone unlocking exemption in 2012) now asks for phone unlocking to be designated a permanent exemption under the law.

These are fairly small changes being sought by the Copyright Office, but it strikes me as somewhat incredible (and very disappointing) that this small bit of enlightenment goes much further than the World Wide Web Consortium's (W3C) view on DRM and security research. As you may recall, there's this ongoing battle over DRM in HTML 5. When the W3C refused to block it outright, some members came up with a fairly straightforward no-brainer rule: all members had to agree not to go after security researchers for circumventing the DRM in HTML 5. And the W3C rejected that proposal.

In other words, the Copyright Office -- famous for its historically expansionist view of copyright, as well as its general tilt towards supporting Hollywood over everyone else -- is now recognizing that it's obvious that security researchers should have the right to circumvent DRM without violating copyright law, while the W3C -- famous for promoting an open web -- is against this. This is "up is down, night is day, cats & dogs living together" kind of stuff. Maybe someone should let the W3C know that it's position on security researchers and DRM is now more extremist than the Copyright Offices?

Either way, at the very least, Congress should follow up on this report and expand the exemptions for security research. It doesn't just help out those researchers, it helps all of us when security researchers are able to do their jobs and help to protect us all.

from the copyright-office-modernization? dept

The U.S. Senate is about to consider mostly pointless legislation that would make the nation's register of copyrights—the individual who heads the U.S. Copyright Office, officially a part of the Library of Congress—a presidential appointment that would be subject to Senate confirmation.

While the measure has earned praise from some in the content industry, including the Motion Picture Association of America, unless senators can find better ways to modernize our copyright system, they really should just go back to the drawing board.

The Register of Copyrights Selection and Accountability Act of 2017 already cleared the U.S. House in April by a 378-48 margin. Under the bill and its identical Senate companion, the power to select the register would be taken away from Librarian of Congress Dr. Carla Hayden. Instead, the president would select an appointment from among three names put forward by a panel that includes the librarian, the speaker of the House and the majority and minority leaders of both the House and Senate. And the register would now be subject to a 10-year term with the option of multiple reappointments, like the Librarian of Congress.

The legislation is ostensibly the product of the House Judiciary Committee's multiyear series of roundtables and comments on modernizing the U.S. Copyright Office. In addition to changes to the process of selecting the register, the committee had recommended creating a stakeholder advisory board, a chief economist, a chief technology officer, making information technology upgrades at the office, creating a searchable digital database of ownership information to lower transaction costs in licensing and royalty payments, and creating a small claims court for relatively minor copyright disputes.

Alas, while it’s billed as a “first step,” the current legislation gives up most of those more substantive reforms and instead amounts largely to a partisan battle over who will have the power to select the next register: Hayden, who was appointed by Barack Obama, or President Donald Trump.

Opponents arguethe bill will make the register and the Copyright Office more politicized and vulnerable to capture by special interests, while ceding more power to the executive. They argue that vetting the register through the nomination process could delay modernization efforts. Hayden needs the position to be filled expeditiously to implement her modernization program, and Trump already faces a sizable confirmation backlog.

Meanwhile, proponents argue a more independent register, less tethered to the will of the Library of Congress, will make USCO more accountable. They say it will make the office run more efficiently and allow it to modernize. They also believe it will address important constitutional questions, such as the separation of powers and oversight by the president.

At the heart of these constitutional questions is the fact the Library of Congress has both significant legislative and executive functions. Housed within the legislative branch, it also sets royalty rates and rules on exemptions from the Digital Millennium Copyright Act. Critics have derided the Copyright Office for being slippery about whether it is serving a legislative or executive role, depending on who’s asking. The contention is that this unusual arrangement renders USCO a “constitutional chameleon.”

Of course, it is not uncommon for entities in one branch to perform the functions of another. The president has a role in the legislative process through his veto power. The International Trade Commission performs judicial functions, but is an independent agency housed within the executive branch. The federal government's separation of powers is not absolute. But there does come a point where those lines become so blurred as to call the original classification into question. In that respect, Congress should consider taking certain functions—such as the Copyright Royalty Board or the Triennial Section 1201 Proceeding—out of the Copyright Office.

Some would propose moving the entire Copyright Office out of the Library of Congress and rendering it a standalone agency, which would elevate the register’s position to one of an officer of the United States. Under that highly controversial scenario, the Constitution's Appointments Clause definitely would require the job be filled by the president. But for now, since the librarian still has ultimate authority over the substantive regulatory powers surrounding copyright, changing who appoints the register won’t change anything outside of a short-term political calculation of who the next register is.

The bottom line is that the current bill simply doesn’t do that much, good or bad. Making the position a presidential appointment is unlikely to speed up IT modernization efforts, at a time when the office has faced numerous setbacks and problems getting that IT infrastructure in place. The original policy proposal drafted by the House Judiciary Committee was a more comprehensive and substantial approach to modernization and many of its provisions were supported broadly. First step or not, this is a feeble try.

As the Senate considers the bill in the coming weeks, they should either amend the legislation so that it will do something to modernize copyright, or just jettison it entirely. As currently written, the bill serves no purpose, and Congress shouldn’t waste its time on it.

from the what-a-farce dept

This isn't a huge surprise, but unfortunately, today -- after a mostly ridiculous "debate" on the House floor full of claptrap and bullshit about how important copyright is to "protecting jobs" (despite this bill having nothing to do with any of that) -- the House voted 378 to 48 to approve a bill that makes the head of the Copyright Office, the Copyright Register, a Presidential appointment rather than an appointment by the Library of Congress, as it's been throughout the entire history of the Copyright Office. As we pointed out just yesterday, Congress appears to be rushing this through for no clear reason. It held no hearings on the issue (other than the fact that the current Librarian of Congress, Carla Hayden, was getting ready to appoint her own Copyright Register).

Again, every reason given by supporters of this bill doesn't hold up to any scrutiny. They claimed, falsely, that copyright creates 5 million jobs (one Rep -- Tony Cardenas -- even claimed that the Copyright Register "oversees" those jobs). But this is not true. They claimed that the Copyright Office needs to be modernized -- which is true. But Carla Hayden has already commenced a massive modernization project, which this bill will stop dead in its tracks. They claimed that this would provide "greater oversight" over how the Copyright Office is run, but that's not even remotely true. The bill actually takes away the oversight from the Librarian of Congress... and gives it to no one other than the President, who isn't likely to be paying much attention to what's happening at the Copyright Office.

This bill serves no purpose other than to take power away from the Librarian of Congress and give it to powerful lobbyists who will have a major say in who runs the Copyright Office. The bill will now move to the Senate where it is also likely to get an easy approval, and no doubt the President will sign the bill (which gives him more power, even if he's shown little sign of actually appointing people to the nearly 500 open positions which this will add to). It's a bad bill, and it's a gift to Hollywood, even as it will harm the actual content creators who will have to wait even longer for the office to actually be modernized.

from the what's-the-hurry? dept

In the past few weeks, we've written a few times about this weird urgency among some in Congress to rush through a pretty major change to Copyright Office oversight. I wrote a deep dive piece over at The Verge discussing the issues at play, but Congress is pushing a bill to stop the new Librarian of Congress, Carla Hayden, from appointing a new head of the Copyright Office. Instead, the Congressional plan is to make the position a political appointee, nominated by the President, and approved by Congress. In that Verge piece, we explained why it was a major change, and scratched our heads at the fact that there appears to be no reason for pushing for this change other than (1) the legacy copyright industries know that their lobbying power will mean that the appointment will be to their liking and (2) they fear who Hayden might appoint. But, what's really odd is how quickly Congress is trying to push this through. As if the matter is incredibly urgent. There have been no hearings on the matter. There's been no public discussion on the pros and cons of such a move. Just a mad dash by a bunch of people in Congress to make this change official before Hayden can appoint someone.

Rep. Zoe Lofgren -- who appears to be one of the few people in Congress questioning why this is happening -- has put out a statement highlighting why this move is so problematic. A key point: if there is such a rush to make the change, how does it make sense to put this appointment power in the hands of a President who has left hundreds of federal jobs completely empty without any nominations at all?

... this legislation will harm and delay much-needed modernization efforts by making the Register a Presidentially appointed position. Currently, there is a backlog of 495 Appointee positions that have not even been nominated. This not only will delay effective administration of the Copyright Office, but also puts the efficiency gains made by the Library at risk. Under current modernization plans, the Library believes it can speed up the modernization plan by almost two years and save significant amounts of money. Those plans depend on an active Register of Copyright who is compliant and accountable to the Librarian. The long delay created by this bill in needing Senate confirmation of a Register will only harm these efforts.

In other words, the arguments for "urgency" because the Copyright Register position is currently vacant are undermining their own argument. Considering the nearly 500 federal government positions that have no nominees yet, who actually thinks that Trump will quickly get around to nominating a new Copyright Register, let alone having that person confirmed by the Senate? The current Librarian of Congress, Carla Hayden, on the other hand, has been reviewing candidates for months now and is likely close to having someone in place.

Similarly, as noted above, if (as is the typical line) this move is necessary to "modernize the Copyright Office," this plan does the exact opposite of that. Hayden has already put forth a plan to modernize the Copyright Office (and has experience modernizing a massive library system). But if the Copyright Office boss has to be nominated by a President who doesn't seem to feel like nominating anyone, and then approved by the Senate, the modernization plan will almost certainly be delayed. So why are supporters of this bill in such a rush if it's going to undermine and delay the key reason they give for supporting this bill: the modernization of the Copyright Office? It's almost as if that's not the real reason.

Separately, Lofgren points out that it's crazy to provide less oversight to the Copyright Office right after it's been revealed that one reason why Hayden likely fired the the previous Copyright Register was because of incredible mismanagement by the previous Register, that included a modernization program that was budgeted for less than $2 million, but ended up spending nearly $12 million before being dumped with nothing to show for it (as we first revealed here on Techdirt).

Removing Dr. Hayden’s ability to appoint the Register of Copyrights means she will be unable to hold employees accountable, and it creates uncertainty and ambiguity in the chain of command between the Librarian and Register of Copyrights.

The previous Register of Copyrights was removed after a Library of Congress Inspector General report found the Copyright Office not only wasted six years and nearly $12 million but hid this information from Congress, falsified information in reports to the Library, and submitted fake budget numbers for annual appropriations requests.

Dr. Hayden took appropriate steps to remove the Register responsible for this mismanagement. This bill would prevent Dr. Hayden from removing or ensuring accountability in any future Register by making the Register answerable only to the President -- a fundamental change in the relationship between Librarian and Register.

Finally, Lofgren notes that it certainly is at least notable and unfortunate that this move to rush through this change certainly appears to be an attempt by Congress to undermine the authority of the first female and first African American Librarian of Congress.

Finally, the bill is a clear affront to the first female Librarian of Congress. Dr. Carla Hayden is not only one of the most highly qualified Librarians ever to serve, but has also worked aggressively and in good faith to pull the Library and Copyright office into the 21st century. I find it deeply disturbing that for the first time in history, a female and a person of color is the Librarian of Congress, and for the first time in history, Congress would take away her power in order to give it to Donald Trump. While this does not point to motive, it is a distressing fact nevertheless.

This bill is a vote of ‘no confidence’ in a Librarian who is aggressively pulling the Library and Copyright Office into the 21st century and, by all evidence, justifiably reassigned an ineffective and negligent Register. It will only serve to delay Copyright Office modernization, harm the public, harm content creators, increase tension between the Library and Copyright Office, and harm Copyright Office employees.

Indeed. There are certainly arguments to be made for changing things up, but no one pushing for this bill seems to be able to answer why this needs to be changed so quickly, when such a change clearly undermines their own stated reasons for supporting the bill. From that, the most logical conclusion is that they are pushing for the change because they are worried about who Hayden is likely to appoint, rather than because of any principled argument.